ALAN SIOK and PAULA SIOK v. RAYMOND PHOENIX, CARLOS CHAVES, KATHLEEN HOULE, CHRISTOPHER COELHO, JOSEPH QUEROGA, and JOHN PEDRO, as they are the members of the PLANNING BOARD OF THE TOWN OF LUDLOW; AMM GROUP LLC, the SWIST FAMILY TRUST, VICTOR Z. SWIST, TRUSTEE; and BENJAMIN YOUNG and LISA YOUNG.

MISC 13-480169

September 24, 2015

Hampden, ss.

SPEICHER, J.

DECISION

The plaintiffs, Alan Siok and Paula Siok (the Sioks), the owners of a landlocked parcel of land in Ludlow, Massachusetts, have appealed a decision of the town of Ludlow Planning Board (Board) approving a modification of a definitive subdivision plan allowing the elimination of a spur right of way shown on the subdivision plan as originally approved, and granting two waivers to the Boards rules and regulations. The Sioks claim that the elimination of the spur, which, if built, would connect their land with the approved subdivision roadway, left their land with no potential access to a public way. For the reasons stated below, I find that the Board did not exceed its authority, and its decision approving the modification of the subdivision is AFFIRMED.

PROCEDURAL HISTORY

The Sioks filed their complaint on October 21, 2013, pursuant to G. L. c. 41, §81BB, appealing the decision (Decision) of the Board approving a modification of the Avelino Way subdivision. The defendants are: the members of the Board; AMM Group LLC (AMM), which is the private developer of the Avelino Way subdivision and the applicant on the challenged modification decision; Victor Z. Swist, Trustee of the Swist Family Trust; and Benjamin and Lisa Young. Swist and the Youngs are the purchasers of Lots 3A and 4A as shown on the definitive subdivision plan as modified by the subject Decision of the Board. The two lots owned by Swist and the Youngs are the beneficiaries of the additional land available to be part of building lots as a result of the elimination of the spur.

AMM, the Board, and Swist and the Youngs filed motions to dismiss pursuant to Mass. R. Civ. P. 12(b)(6) on the grounds that the complaint was not timely (because the Sioks had not appealed the earlier approval of an ANR Plan, as to which, see infra), and that the Sioks, despite being abutters, did not have standing to pursue the appeal because they have no interest in the subdivision. The court (Sands, J.), denied the motions to dismiss on June 2, 2014, ruling that the complaint was timely filed and that the Sioks, as abutters, had a presumption of standing that had not yet been challenged by any evidence to the contrary.

Following denial of the motions to dismiss, the defendants filed answers to the complaint, and AMM filed with its answer, on June 26, 2014, a counterclaim with counts asserting claims for abuse of process, unjust enrichment, taking, and frivolous claim. The Sioks, on August 11, 2014, filed a motion to dismiss the counterclaims for unjust enrichment, taking, and frivolous claim, and filed a special motion to dismiss pursuant to Mass. R. Civ. P. 59H, with respect to the abuse of process counterclaim. Without the court having acted on the motions to dismiss, the Sioks, on September 22, 2014, filed a pleading styled as a Reply to the counterclaims. [Note 1] On September 29, 2014, AMM filed an assent to the Sioks motions to dismiss its counterclaims. It does not appear from the docket that the counterclaims were ever formally dismissed.

On April 3, 2015, the court (Speicher, J.) heard motions in limine with respect to evidence proposed to be admitted at trial. [Note 2] The court denied the plaintiffs motion in limine seeking to exclude evidence of drainage and water problems in the subdivision that the defendants proposed to introduce as a basis for the Boards decision allowing the elimination of the spur right of way. The defendants moved to exclude the plaintiffs proposed introduction of evidence concerning a so-called concept plan for connecting the Avelino Way subdivision with other nearby subdivisions. The plaintiffs argued that the spur right of way was necessary to implement such a concept plan for connecting all of the nearby subdivisions. The court allowed the motion in limine to exclude this evidence on the ground that the Boards rules and regulations did not incorporate or otherwise memorialize the concept plan that the plaintiff was offering as a ground for overturning the Boards decision. Proposed introduction of submissions by municipal departments relating to the subdivision modification application and testimony of members of the Board were also excluded on the ground that the upcoming trial is a trial de novo. [Note 3]

In the presence of counsel, I conducted a view of the Avelino Way subdivision in Ludlow on June 2, 2015, and a trial was held in the Palmer District Courthouse on the same day. A court reporter was present to transcribe the testimony and proceedings. Sixteen exhibits were admitted at trial, and the court heard testimony from four witnesses. At the trial, the defendants moved for a directed finding at the close of the plaintiffs case. The court denied the motion. The defendants then rested without calling any witnesses. After the submission of post-trial briefs and requests for findings of fact and rulings of law, the court heard closing arguments on September 8, 2015 and took the matter under advisement.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows.

The 2007 Plan

1. By a decision dated August 27, 2007 (Exhibit 3), the Board approved an application for approval of a definitive subdivision plan pursuant to G. L. c. 41, §81U. The decision approved the definitive subdivision plan for Avelino Way in Ludlow (the 2007 Plan) (Exhibit 2). The 2007 Plan, as approved by the Board, was recorded with the Hampden County Registry of Deeds on November 27, 2007 in Plan Book 348, Page 77.

2. The 2007 Plan, as approved, subdivided a parcel of land off of Alden Street into ten residential building lots, each in excess of 40,000 square feet in area, and each with frontage of at least 140 feet (as required in the applicable Agricultural zoning district) on a dead-end roadway with a cul-de-sac, to be known as Avelino Way. Avelino Way, as approved, is 1,050 feet in length from its intersection with Alden Street to the end of the cul-de-sac.

3. The 2007 Plan, as approved, also shows a roadway (the spur), fifty feet in width and two hundred thirty-five feet in length, extending at a ninety degree angle from Avelino Way, near the cul-de-sac end of the roadway, with its centerline 810 feet from Alden Street, to the western boundary of the Avelino Way subdivision property, where it ends at the eastern boundary of undeveloped land shown on the 2007 Plan as n/f Daniel A.
Watson (the Watson property). [Note 4]

4. In its approval of the 2007 Plan, the Board did not require the spur road to be built, but did require the installation of catch basins at the location of the future street extension, referring to the base of the spur where it meets Avelino Way. Accordingly, in compliance with this requirement, the approved 2007 Plan shows three catch basins in Avelino Way at the base of the spur, but shows no proposed grading or other work, such as the installation of catch basins and other drainage structures, on the spur itself. Given the lack of necessary engineering details for the spur shown on the 2007 Plan, it would not be possible to construct the spur without additional engineering, which would have to be separately approved by the Board.

5. The Boards decision approving the 2007 Plan did not require the developer to grant or reserve an easement in the spur for the benefit of the town or for the benefit of the owner of the adjacent Watson property, and no such easement was ever granted or reserved.

6. No waivers were requested or granted in connection with the approval of the 2007 Plan from the requirements of the Ludlow Subdivision Rules and Regulations (the Rules and Regulations) with respect to the length of the dead-end subdivision roadway or with respect to the number of entrances from an existing public way onto the subdivision roadway. See infra at para. 16.

7. The approval by the Board of the 2007 Plan was not appealed.

The Sioks Ownership of the Watson Property

8. The plaintiffs, Alan and Paula Siok, purchased the Watson property from Daniel Watson, Alan Sioks lifelong friend and business partner, in 2009 for approximately $38,000.

9. The Watson property is approximately twelve acres in size, but has no frontage on any way. It abuts the western boundary of the Avelino Way subdivision for a distance of approximately 650 feet, specifically along the boundaries of Lots 2, 3A, 4A and 5.

10. The Sioks did not acquire, as part of the purchase of the Watson property or otherwise, any express easement or other interest in the spur or any other part of the Avelino Way subdivision, and at no time have the Sioks held any record interest in the Avelino Way subdivision property. The Sioks did not acquire and do not have any easements across any part of Lots 3A or 4A, (the former location of the spur) presently owned by Swist and Young.

The ANR Plan

11. On or about April 26, 2012, AMM Group LLC, (AMM) the owner of the Avelino Way subdivision, as successor in interest to the owners at the time of the approval of the 2007 Plan, submitted to the Board for its endorsement a plan pursuant to G. L. c. 41, §81P, to be endorsed as Approval Under the Subdivision Control Law Not Required (the ANR Plan). AMM sought, by approval of the ANR plan, to eliminate the spur as shown on the 2007 Plan, and to merge it into the two adjacent building lots, Lots 3 and 4. The Board endorsed the ANR Plan on or about April 26, 2012, and it was recorded with the Hampden County Registry of Deeds on April 30, 2012 in Plan Book 363, Page 45. The now-enlarged lots were re-designated on the ANR Plan as Lot 3A and Lot 4A.

12. On June 7, 2012, AMM sold Lot 3A to Victor Z. Swist, Trustee of the Swist Family Trust, for consideration of $125,000, by a deed recorded with the Hampden County Registry of Deeds (Registry) in Book 19293, Page 406. On the same date AMM sold Lot 4A to Benjamin Young and Lisa Young for $125,000 by a deed recorded with the Registry in Book 19293, Page 408.

13. The Sioks did not appeal the endorsement of the ANR Plan. Instead, the Sioks filed a case in Hampden County Superior Court challenging the effectiveness of the Boards endorsement of the ANR Plan in eliminating the spur, and seeking an order in the nature of mandamus to order the Planning Board to hold a hearing on modifying the approved subdivision plan pursuant to G. L. c. 41, §81W. [Note 5]

The 2013 Plan

14. AMM applied to the Board for a modification of the approved 2007 Plan pursuant to G. L. c. 41, §81W (although it was not denominated as such). [Note 6] The Sioks thereafter dismissed the Superior Court action.

15. By a memorandum filed with the Board on August 28, 2013, the chairperson of the Ludlow Board of Health informed the Board that the Board of Health had no comments at this time with respect to the application for modification of the 2007 Plan. (Exhibit 15)

16. The Board held a public hearing on the modified Avelino Way subdivision plan (the 2013 Plan) and issued a decision approving the 2013 Plan dated October 4, 2013. [Note 7] The Board, in approving the 2013 Plan, allowed the modification of the 2007 Plan to eliminate the spur and allow the consequent increase in the width and area of Lots 3 and 4 (now called Lots 3A and 4A). [Note 8] The Board also approved several waivers of the Rules and Regulations, two of them substantive. The two substantive waivers were: (a) a waiver of the requirement in Section III.A.1.i for a second access to subdivisions with more than eight lots, and (b) a waiver of the requirement in Section III.A.1.a that dead-end streets be no more than 1,000 feet in length. Neither of these waivers had been requested or granted in connection with the approval of the 2007 Plan.

17. The Boards approval of the 2013 Plan was filed with the town clerk on October 7, 2013, and the Sioks filed a timely appeal.

The Rules and Regulations

18. The Rules and Regulations, as in effect at the time of the Boards approval of the 2013 Plan (Exhibit 1), provide in relevant part as follows:

a. PURPOSE The powers of a planning board and of a board of appeals under the subdivision control law shall be exercised with due regard for the provision of adequate access to all of the lots in a subdivision by ways that will be safe and convenient for travel; and for coordinating the ways in a subdivision with each other and with the public ways in the city or town in which it is located with the ways in neighboring subdivisions It is the intent of the Subdivision Control Law that any subdivision plan filed with the Planning Board shall receive the approval of such board if said plan conforms to the recommendation of the Board of Health and to the reasonable rules and regulations of the Planning Board provided, however, that such board may, when appropriate, waiver, as provided for in Section 81R, such portions of the rules and regulations as is deemed advisable. (quoting G. L. c. 41, §81M)

b. Section III.A.1.a:  Where required by the Board, provisions shall be made in the proper locations for extension of streets to abutting undeveloped land.

c. Section III.A.1.i: All subdivisions containing more than eight (8) lots shall provide no less than two (2) street entrances from an existing roadway.

d. Section III.A.4.a: Dead-end streets shall not be longer than one-thousand (1,000) feet, unless in the opinion of the Planning Board, a greater length is necessitated by topography or other local conditions.

e. Section V.A: VARIATION. Strict compliance with the requirements of these Rules and Regulations may be waived when, in the judgement of the Planning Board, such action is in the best interest of the Town and not inconsistent with the Subdivision Control Law.

f. Section V.D: RESUBDIVISION. A subdivision plan that has been approved by the Planning Board and duly recorded in the Registry of Deeds, may not be changed in any line or grade until the petitioner has followed the same procedure as that required for a new subdivision. In addition, the Planning Board shall consider what developments have taken place in the said plan, by individuals, in their reliance on its official records in the Registry of Deeds and whether the granting of the requested change or changes would affect an individual right required thereunder. The Planning Board shall require the petitioner to secure releases to himself from all abutters who may be affected within the tract, relieving him of all damages which may be caused by any action taken under the proposed change. The new subdivision plan shall contain a clear and distinct reference to the former subdivision plan and to the book and page on which it is recorded in the Registry of Deeds and shall show revisions or departures from the original in red ink.

DISCUSSION

STANDING

As a preliminary matter, as with zoning appeals governed by G. L. c. 40A, §17, a plaintiff challenging a decision of a planning board pursuant to G. L. c. 41, §81BB must establish that he or she is aggrieved by the decision of the Board. Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 522 (2009). Zoning cases as well as subdivision cases provide guidance in defining who is an aggrieved person in the subdivision context  Rattner v. Planning Bd. of West Tisbury, 45 Mass. App. Ct. 8 , 10 (1998). The plaintiff must assert a plausible claim of a definite violation of a private right, a private interest, or a private legal interest that is not speculative and that is an interest or right that the statute is intended to protect. Krafchuk, supra, at 522, citing Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 27-28 (2006). As in zoning appeals, an abutter enjoys a rebuttable presumption of aggrievement. Krafchuk, supra, at 522. A party challenging the presumption must offer evidence warranting a finding contrary to the presumed fact. Standerwick, supra, at 34, quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). If a defendant fails to offer sufficient evidence to rebut the presumption of standing, then the abutter is deemed to have standing, and the case proceeds on the merits. 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 701 (2012). If, however, the presumption is rebutted, the burden shifts to the plaintiff to prove, by direct facts and not by speculative opinion, that he has suffered an injury that is special and different from the rest of the community. Standerwick, supra, at 33. The plaintiff at this point need not prove by a preponderance of the evidence that his or her claim of particularized injury is true. Krafchuk, supra, at 523. Rather, the plaintiff must put forth credible evidence to substantiate his allegations. In this context, standing becomes, then, essentially a question of fact for the trial judge. Id., quoting Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996).

The Sioks own land abutting the Avelino Way subdivision, and accordingly, they are entitled to a presumption that they are persons aggrieved by the decision of the Board approving the modification of the Avelino Way subdivision to eliminate the spur. The defendants, to counter the Sioks presumed aggrievement, offered facts established on cross-examination.
Specifically, the defendants elicited on cross-examination of plaintiff Alan Siok that in acquiring the landlocked Watson property, the plaintiffs did not acquire, then or at any other time, any interest in the Avelino Way subdivision, or any easements or other rights to the spur or the lots into which the spur was merged, in order to connect their property with the Avelino Way subdivision roadway and thereby gain access to Alden Street, the nearest public way. [Note 9] The defendants argue that, having no title interest or right to use the spur or the lots into which it was merged, the plaintiffs had no right to cross the spur or to use the subdivision roadway for access to Alden Street. Hence, they are not aggrieved by the elimination of the spur, since they had no right to use it for access to their property in any case. Since the only aggrievement claimed by the Sioks is the denial of access caused by the elimination of the spur, I find that the defendants successfully rebutted the presumption of aggrievement enjoyed by the Sioks.

It then falls to the plaintiff to put forth credible evidence of a direct, non-speculative injury. The plaintiffs counter that they had a reasonable expectation at the time they acquired the Watson property in 2009 that Avelino Way, and the spur, after construction, would eventually be accepted by the town of Ludlow as public ways, and would then provide access to and from the Watson property. As proof of their reasonable expectation, the plaintiffs offer that the Planning Boards purpose in originally including the spur on the 2007 Plan was to allow access for a future roadway  [Note 10] The plaintiffs also offered the testimony of the Ludlow town planner with respect to a conversation with plaintiff Alan Siok, in which the town planner informed Mr. Siok that if the stub was built out it had the potential to be a roadway, and thereby provide the needed access, if it became a town public way. [Note 11]

The reasonableness of the plaintiffs reliance on the possibility of access being provided to their property depends on a number of ifs: if the spur is built out; if Avelino Way is accepted as a public way; and if the spur is accepted as part of the public way. Since the plaintiffs have no private rights over Avelino Way or the spur, access could only be provided if both roadways are constructed and both are accepted as a public ways. There was no requirement in the approval of the 2007 Plan that the spur ever be constructed, and the approved plan did not include any finish grades, drainage details or other plan details necessary for its construction. Furthermore, there was no guarantee that Avelino Way would be accepted by the town as a public way (many subdivision roadways are never accepted as public ways), or that the spur in particular, even if constructed, would be accepted as a public way. Accordingly, the Sioks reliance on the construction of the spur and the acceptance by the town of both the spur and Avelino Way, could be seen as evidence of, at best, a speculative injury. Sweenie v. A. L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008).

However, the burden on the plaintiffs to counter the defendants rebuttal of standing is not great. The plaintiffs need not prove by a preponderance of the evidence that [their] claim of particularized injury is true, Krafchuk, supra, at 523, only that it is credible evidence that rises above the level of speculation. In similar circumstances, where a planning board, in the absence of any easement, had ordered the construction of a roadway across the land of a property owner whose property abutted a subdivision, neither the parties nor the court questioned the standing of the plaintiff to challenge the planning boards decision approving the subdivision. Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 (1989).

I find that, although it is a close question, the plaintiffs have sufficiently countered the defendants evidence rebutting the plaintiffs presumption of standing, and have established their standing as aggrieved persons. Having determined that the plaintiffs are aggrieved persons entitled to challenge the Boards Decision on the merits, I now consider the Boards Decision.

STANDARD OF REVIEW

This review of the modification of a definitive subdivision plan is governed by G. L. c. 41, §81BB, the appeal provision of the Subdivision Control Law, G. L. c. 41, §§81K  81GG. The standard of review in a G. L. c. 41, §81BB appeal of a planning board decision approving or modifying (or for that matter, disapproving or rescinding) a definitive subdivision plan was succinctly stated by Judge Long of this court in Wylde v. Planning Bd. of Williamstown, 17 LCR 488 , 491 (2009):

The trial courts duties are to conduct a hearing de novo, find the relevant facts, and determine the validity of the planning boards decision. Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 106 (1991); see also Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 479 (1955); Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 173 (1977). In determining the validity of the decision, the judge must decide whether, on the facts found by him, the board had exceeded its authority in approving the plan aired at the public hearing. In the course of that process, he should determine[] whether that plan conform[s] to the recommendations of the board of health. If such rules and regulations ha[ve] been complied with and the plan comport[s] with the recommendations of the board of health, he should determine[] that the board did not exceed its authority in approving the plan. Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 23-24 (1977). However, since one is entitled to have a definitive subdivision plan approved unless it is shown to be in conflict with recommendations of the board of health or the reasonable rules and regulations of the planning board, the burden of adducing proof is on those who contend that a subdivision plan was improperly approved. Selectmen of Ayer [v. Planning Board of Barnstable], 3 Mass. App. Ct. at 548. A plan may not be disapproved merely because the board feels general public considerations make such action desirable. Mac-Rich Realty Const., Inc., v. Planning Bd. of Southborough, 4 Mass. App/ Ct. 79, 84-85 (1976) (quoting Pieper v. Planning Bd. of Southborough, 340 Mass. 157 , 163-64 (1959)).

Thus, the courts role is circumscribed by the applicable subdivision rules and regulations, and by the recommendations of the board of health. The Board may not disapprove a plan that complies with the Boards reasonable rules and regulations for the subdivision of land and with the reasonable recommendations of the Board of Health, and the court may not overturn the decision of the Board if the Board has complied with those strictures.

The plaintiffs allege that the Board exceeded its authority in approving the 2013 Plan in three respects: (1) by eliminating the spur roadway that could have potentially provided access from the Watson property to Avelino Way and Alden Street, (2) by granting a waiver of the requirement for two entrances to a subdivision with more than eight lots, and (3) by granting a waiver of the requirement that a dead-end road not exceed 1,000 feet in length. [Note 12] If the Board complied with its Rules and Regulations and the recommendations of the board of health in allowing the elimination of the spur roadway, and in granting the waivers of the two-entrance rule and the maximum length of roadway rule, then the Board did not exceed its authority. Strand v. Planning Bd. of Sudbury, supra, at 23-24. The plaintiffs also make an estoppel argument, claiming the Board and should be estopped from eliminating the spur roadway because of the Sioks reasonable reliance on its continued existence in purchasing the Watson property.

THE BOARD DID NOT VIOLATE ITS RULES AND REGULATIONS.

As an initial matter, it is without question, and I so find that the Board complied with the recommendations of the board of health. The board of healths recommendation was limited to its memorandum to the Board indicating that it had no comments at this time. [Note 13] Therefore, with respect to the requirement that the Boards approval comply with the recommendations of the board of health, the Board did not exceed its authority.

The plaintiffs argue that the Board exceeded its authority in depriving the plaintiffs of the potential access that was represented by the spur, not on the basis of violation of a particular rule or regulation, but rather on the basis of the plaintiffs suggestion that there had been discussions, upon which the plaintiffs relied, between the plaintiffs and the Boards representative regarding a so-called concept plan that would eventually tie several nearby subdivisions together, including the Avelino Way subdivision and the potential future subdivision of the Watson property. They argue that such a concept plan depended on the continued existence, and eventual construction and acceptance as a public way, of the spur connecting Avelino Way to the Watson property. While such a concept plan might or might not be a good idea in the abstract, it is not specifically incorporated into the Rules and Regulations. The Boards failure to adopt or honor the concept plan that would potentially connect several subdivisions together cannot support a conclusion that the Board exceeded its authority unless a requirement for the adoption of such a plan can be found in the Rules and Regulations.

The Rules and Regulations address the subject of connection of ways in abutting subdivisions in only two instances: in the Purpose preamble of the Rules and Regulations, which provides in relevant part that the powers of the Board shall be exercised with due regard for coordinating the ways in a subdivision with each other and with the public ways in the city or town in which it is located and with the ways in neighboring subdivisions.; and in Section III.A.1.a, which provides Where required by the Board, provisions shall be made in the proper locations for extension of streets to abutting undeveloped land. To the extent that Section III.A.1.a implements the stated purpose in the preamble of coordinating the ways in a subdivision with the ways in neighboring subdivisions, it is the only operative rule to be considered.

Section III.A.1.a serves the proper purpose of providing the potential for future connections to land that might in the future be subdivided, and the Board has acknowledged that this is in fact the reason that it required the spur to be shown on the 2007 Plan. [Note 14] However, Section III.A.1.a is not phrased in mandatory terms. It gives the Board the discretion to require such connections but does not mandate the Board to do so. When confronted in 2013 with the request to eliminate the spur that it had required to be included in 2007, the Board could have reasonably concluded that it was appropriate to eliminate the spur, and that eliminating the spur did not violate Section III.A.1.a of the Rules and Regulations.

Reasons for allowing the elimination of the spur include the lack of any legal basis in 2013 for requiring the actual construction of the spur. The Board approved the 2007 Plan without requiring or obtaining the reservation or grant of an easement for the benefit of either the town or the owner of the abutting land. [Note 15] Consequently, by 2013 neither the town, the Board, nor the owner of the abutting land could force the owner of the subdivision to allow the construction of the spur.

This was exactly the situation faced by another planning board when it attempted to require a subdivision developer to build a road on adjacent land on which it had, years earlier, required a definitive subdivision plan to show a similar connecting spur, but for which it had failed to obtain an easement. In Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 (1989), the North Andover Planning Board had required the developer of a subdivision called Marbleridge Estates to show a future connection for a roadway on one of the subdivision lots, and to grant an easement for the future roadway so that when the adjacent land was developed, the roadways in the two subdivisions could be connected. The developer showed the intended future roadway on the plan, but the planning board neglected to obtain an easement over the lot with the proposed future roadway before certifying that the subdivision was complete and releasing the developers performance bond. The lot on which the plan showed the future roadway was sold without any easement encumbering it. Years later, the planning board, in approving Abbott Village Estates, a subdivision of the adjacent land, required the Abbott Village Estates developer to build and incorporate into the new subdivision, the future roadway shown on the lot in the adjacent Marbleridge Estates subdivision. The owner of the lot on which the future roadway was to be located appealed the approval. The Appeals Court held that no easement authorizing the construction of the roadway was conveyed by virtue of its having been shown on a subdivision plan. The mere approval and recording of a subdivision plan which refers to a roadway does not convey an easement in favor either of those owning property abutting the subdivision or the public generally. Id. at 480. With no legal basis for requiring the construction of the spur, the purpose of making provision for the proper locations for extension of streets to abutting undeveloped land as embodied in Section III.A.1.a of the Rules and Regulations is not served by continuing to require the spur to be shown on the Avelino Way subdivision plan.

Since there was no easement by which the Board could require the construction of the spur, it was reasonable for the Board to conclude that there was no sound purpose in continuing to require that the spur be shown on the subdivision plan for the Avelino Way subdivision. Where the owner of land adjacent to a subdivision does not have an easement to use the roadways in the subdivision for access to the subdivision, even ownership of a lot in the subdivision will not justify the use of the subdivision roadways for access to the adjacent land. Matthews v. Planning Bd. of Brewster, 72 Mass. App. Ct. 456 , 466 (2008). There is no suggestion in the record that the Sioks had any ability to purchase, or even any intention of purchasing an easement, or that Swist and the Youngs or the owner of the rest of the subdivision, had any intention of selling an easement so that the road could be constructed across their
properties. [Note 16]

Accordingly, the Board did not act in an arbitrary or capricious manner or exceed its authority in allowing the elimination of the spur on the Avelino Way subdivision plan, and the Board did not violate Section III.A.1.a or any other rules relating to the connection of subdivision land to adjacent undeveloped land by allowing the spur to be eliminated.

THE BOARD DID NOT EXCEED ITS AUTHORITY IN GRANTING WAIVERS.

At the same time that it allowed the elimination of the spur from the approved subdivision plan, the Board granted waivers from the requirements of two sections of the Rules and Regulations:

Section III.A.1.i: All subdivisions containing more than eight (8) lots shall provide no less than two (2) street entrances from an existing roadway.

Section III.A.4.a: Dead-end streets shall not be longer than one- thousand (1,000) feet, unless in the opinion of the Planning Board, a greater length is necessitated by topography or other local conditions.

[A] planning board enjoys broad discretion to waive strict compliance with its rules and regulations where the waiver is in the public interest and is not inconsistent with the intent and purpose of the subdivision control law The board is not required to set forth findings on which it bases its determination. Krafchuk v Planning Bd. of Ipswich, 453 Mass. 517 , 529 (2009). When they waive the application of rules and regulations, planning boards are not required to explain their action with findings - however desirable that might be. Meyer v. Planning Bd. of Ipswich, 29 Mass. 167 , 169 (1990).

The Board, in 2007, had approved Avelino Way with a length of 1,050 feet, fifty feet longer than allowed by the applicable rule. Although no waiver from Section III.A.4.a, with respect to maximum length of a dead-end street, was explicitly granted in 2007, such a waiver was effectively granted (and not appealed). [A] planning board is not required to specify and list in writing those rules and regulations which it has waived. Meyer v. Planning Bd. of Ipswich, supra, 29 Mass. App. Ct. at 170.

The 2013 approval at issue presently did not change the length of the dead-end roadway. Elimination of the spur did not affect the length of the roadway in any way, except, arguably, to make it shorter. The apparent argument by the plaintiffs that, with the spur, the roadway was not a dead-end street, is without merit. Any argument to this effect relies on too many speculative future occurrences to be considered to render Avelino Way not a dead-end street. There is nothing in the 2007 approval requiring the construction of the spur; neither the plaintiffs nor the Town of Ludlow have any easement rights that would allow the construction of the spur; and even if the spur were to be constructed, Avelino Way would still be a dead-end street (in fact, it would be a longer, two-headed dead-end street). Under these circumstances, the granting of a waiver from the maximum length of dead-end street provision of the Rules and Regulations was superfluous, and was merely an explicit recognition that the waiver had effectively been granted (and not appealed) six years earlier. Accordingly, the Board did not exceed its authority in explicitly recognizing and granting the waiver in 2013.

Similarly, the Boards grant of a waiver of Section III.A.1.i, which requires two entrances from an existing roadway into any subdivision with more than eight lots, was a recognition that it had effectively granted the same waiver in 2007 when it first approved the subdivision. Contrary to the plaintiffs argument, the construction of the spur roadway, opening up the Watson property to development of additional lots, actually would have rendered the subdivision even more in violation of Section III.A.1.i than without the spur. If the spur was constructed, it would require the waiver in order to permit development, since the combined subdivision would then contain more than the ten lots presently in the Avelino Way subdivision, and would still not have a second entrance onto an existing roadway. The Board, in considering the request for this waiver, could reasonably conclude that the waiver was appropriate because, with the elimination of the spur, and with a maximum of ten lots, the subdivision presented less of a deviation from the requirements of the two-entrance rule than it would have had the spur not been eliminated.

The plaintiffs apparent argument that they intended to someday build a connection from their property through another subdivision so as to create a second entrance, is unavailing. Notwithstanding their offer of a concept plan showing a potential to connect to other subdivisions, notably, the plaintiffs offered no evidence of any present ability, or contractual right in the future, to build any additional roadway from the Watson property to an existing roadway so as to effectively create a second entrance to the existing subdivision from an existing public way. Under these circumstances, the Board was well within its authority and the proper exercise of its discretion in granting a waiver from the requirement that a subdivision with more than eight lots have two entrances from an existing roadway.

PLAINTIFFS HAVE NOT ESTABLISHED A RIGHT TO RELIEF ON A THEORY OF ESTOPPEL.

The Sioks argue that they have established, or would have, if the court had allowed them to, sufficient facts to justify the court in recognizing the creation of an easement by estoppel with respect to the spur. Specifically, the plaintiffs offer the testimony of the Ludlow town planner with regard to a conversation he had with Mr. Siok prior to the Sioks purchase of the Watson property. Asked by Mr. Siok about the possibility of being able to use the spur for access to the Watson property, the town planner offered that if the stub was built out it had the potential to be a roadway, if it was accepted by the town. [Note 17] The plaintiffs also made an offer of proof that Mr. Siok would have testified that the town planner told Mr. Siok that once it was accepted as a public way -- by the town, he would have access over that way, and that the Sioks relied at least in part on these statements in purchasing the Watson property. [Note 18] Based on this testimony and offer of proof, the plaintiffs claim that they reasonably relied on the statements of a representative of the town in purchasing the Watson property with a reasonable belief that they would be able to use the spur for access to their property from a public way.

The plaintiffs argument is without merit for several reasons: (1) I do not credit Mr. Sioks testimony (or offer of proof) that the Sioks relied on the representations of the town planner in purchasing the Watson property, but to the extent they did rely on the representations of the town planner, such reliance was unreasonable; (2) as a matter of law, the Board was not estopped from approving the 2013 Plan by the representations of the town planner; and (3) as a matter of law, the doctrine of easement by estoppel is not available to the Sioks where their property and the subdivision property do not come from a common grantor.

A. The Sioks Did Not Rely on the Representations of the Town Planner, Nor Would Any Such Reliance Have Been Reasonable.

At the time of purchase, the Sioks either knew or should have known that they were purchasing the property without the benefit of an easement over the Avelino Way subdivision, regardless of the representations of the town planner, on which Mr. Siok claims they relied. It is likely, and I so find, that they had either actual or constructive knowledge of the lack of any easement or other right to cross the Avelino Way subdivision property for access. It is inconceivable that an experienced developer, as Mr. Siok was, [Note 19] purchasing land for development would not investigate whether the land being purchased had title rights sufficient to provide access to a public way. The absence of such rights was a matter of public record at the time of the purchase of the Watson property in 2009. Notably, the Sioks purchased the twelve- acre Watson property for what can only be described as the below bargain-basement price of approximately $38,000, giving rise to an inference that the serious risk that the Watson property would remain landlocked and undevelopable was a factor in determining the price of a parcel of land that, with appropriate road access, would likely yield at least several buildable lots. [Note 20] It is likely, and I so find, that the Sioks understood they were taking a gamble by paying a below- market price for a parcel that had no present legal access, and that might not ever be buildable, but would prove to be a windfall if it ever gained roadway access.

Nothing said by the town planner to Mr. Siok reasonably could be construed to change the Sioks actual or constructive knowledge of the speculative nature of the purchase of the Watson property. Mr. Siok acknowledges that the town planner only told him the spur could be used by him if it was built out and if it was accepted as a public way. The Sioks did not elicit any testimony that goes beyond this level of speculation, nor did they even make an offer of proof of evidence that, if admitted, would permit a reasonable inference that the spur would actually be built or that it would actually be accepted as a public way. In combination with Mr. Sioks knowledge, or constructive knowledge, that there was no requirement that the spur be constructed, that there was no easement that would allow him or the town to do so, and the lack of any assurance by the town planner that the spur would actually be constructed or that it would be accepted as a public way, I find, notwithstanding the offer of proof to the contrary, that the Sioks did not rely on the statements of the town planner in purchasing the Watson property, but that if they did, that reliance was unreasonable and cannot give rise to an estoppel. See Phipps Products Corp. v. Mass. Bay Transp. Auth., 387 Mass. 687 , 694 (1982) (estoppel cannot be invoked if reliance was not reasonable).

B. The Doctrine of Estoppel Is Not a Defense to the Boards Decision.

Assuming the representations of the town planner were factually sufficient to give rise to an estoppel (which I find they are not), the doctrine of estoppel is not available to estop the Board from approving the 2013 Plan. Generally, the doctrine of estoppel is not applied against the government in the exercise of its public duties, or against the enforcement of a statute. Gamache v. Mayor of North Adams, 17 Mass. App. Ct. 291 , 294 (1983). [E]stoppel is not a defense to an action to enforce municipalities by-laws or zoning ordinances. Cape Resorts Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205 , 224 (1982) (internal quotations omitted). The doctrine of estoppel cannot stay the hand of a municipality in enforcing its zoning laws. Ferrante v. Bd. of Appeals of Northampton, 345 Mass. 158 , 162 (1962). Reluctance to utilize the doctrine of estoppel with respect to the actions of governmental officials in the exercise of their official duties extends beyond enforcement of zoning laws.
Phipps Products Corp. v. Mass. Bay Transp. Auth., supra, 387 Mass. at 693-694 (estoppel not available with respect to MBTAs violation of bidding laws). There is no valid distinction to be made here from zoning laws and other municipal laws where the doctrine has been deemed inapplicable that would justify imposing the doctrine with respect to the Boards action under the subdivision control law.

C. Easement by Estoppel is Not Available to the Plaintiffs.

The Sioks argue that since the elimination of the spur leaves the Watson property landlocked and without any potential access to a public way, an easement by estoppel should be recognized to prevent their property from remaining landlocked. They assert, incorrectly, that in Patel v. Planning Bd. of North Andover, supra, the court considered application of the doctrine of easement by estoppel, but did not apply it because only the town of North Andover had relied on the anticipated but inadequately documented easement. The court, in Patel, instead held that application of the doctrine of easement by estoppel is only appropriate when seeking to assert claims of grantees or their successors in title against their grantors and their successors in title. Patel, supra, 27 Mass. App. Ct. at 482. In other words, where the property upon which the easement was sought to be imposed did not come from the same grantor as the property sought to be benefitted, there was no valid argument for imposition of an easement by necessity, by implication, or by estoppel. Id. at 481-482. The Massachusetts Appeals Court has rejected subsequent efforts to broaden application of the principle of easement by estoppel beyond these limitations. Blue View Construction, Inc. v. Town of Franklin, 70 Mass. App. Ct. 345 , 355-356 (2007).

Here, the Sioks offered no evidence that the Avelino Way subdivision and the Watson Property derived from a common grantor, so as to justify an argument of an easement by necessity, implication or estoppel. [Note 21] The mere fact that the Watson property is landlocked does not give rise to any easement by necessity, implication or estoppel. Where an owners land is landlocked as a result of his own actions, he has no claim to the land of others to remedy his self- inflicted landlocked status. Id., at 354. In Blue View Construction, the plaintiff created its own landlocked status by conveying away its street frontage. In the present case, the Sioks purchased the Watson property already landlocked, and with no rights whatsoever over any part of the Avelino Way subdivision.

Accordingly, where the landlocked status of the Watson property did not derive from the actions of a common grantor of the Avelino Way subdivision, there is no occasion for application of the doctrine of easement by estoppel.

CONCLUSION

For the reasons stated above, the decision of the Board allowing a modification of the Avelino Way subdivision eliminating the spur roadway and granting waivers from the maximum length of roadway and two-entrance requirements of the Rules and Regulations, did not exceed the authority of the Board, was not arbitrary or capricious, and is hereby AFFIRMED.

Judgment accordingly.

FOOTNOTES

[Note 1] This Reply is actually an answer to the counterclaims, apparently waiving the motions to dismiss.

[Note 2] This case, originally assigned to Sands, J., was reassigned to Speicher, J., on or about April 1, 2015. See Land Court Standing Order 1-04 (B).

[Note 3] The courts rulings on the motions in limine were given from the bench and memorialized in an entry on the courts docket for this case as follows:

Hearing on motions in limine. Attorneys Fitz-Gibbon, Callan and Laroque appeared. Plaintiffs' motion in limine concerning water run-off and flooding DENIED, provided that no expert testimony will be admitted unless defendants appropriately update interrogatory answers and pre- trial conference disclosures no later than April 17, 2015. Should defendants seek to offer expert testimony on this subject, then plaintiffs shall be afforded until May 1, 2015 to similarly update answers to interrogatories, if applicable, and pre-trial conference disclosures. "Joint motion in limine regarding planning board member testimony, minutes, videos, concept plan and other irrelevant information", is ALLOWED in part as follows: motion allowed as to testimony of planning board members, submissions of municipal departments, correspondence, video of meetings; motion further allowed with respect to evidence of approval of other subdivisions, and evidence of so-called concept plan not memorialized in Board's rules and regulations. Application, decision and plan with respect to original 2007 Avelino Way Subdivision and ANR approval will be admitted; minutes of meetings for 2007 approval, ANR approval, and current modification approval will be admitted for limited purposes. Court will hold June 2 and June 3 for trial, to be held at Palmer District Court; counsel to confirm dates on or before April 8, 2015.

[Note 4] A copy of the Lot Layout sheet of the 2007 Plan, admitted at trial as Exhibit 2, is attached to this decision as Appendix A.

[Note 6] The 2013 Plan is entitled, Definitive Subdivision Plans  Avelino Way  Ludlow, Mass. The 2013 Plan contains a note referencing the approval and recording information of the 2007 Plan. (Exhibit 5A, Sheet 2 of 8) The Rules and Regulations, in Section V.D, term such a plan a Resubdivision, and it was referred to as such at trial, although it is actually, and is treated by the court as, a modification pursuant to G. L. c. 41, §81W. The definition of resubdivision in Section V.D of the Rules and Regulations encompasses change of a subdivision plan in any line or grade and thus encompasses modification as well as resubdivision, or, the further subdivision of lots in an existing subdivision. See, Rathkopfs The Law of Zoning and Planning, §89.15.

[Note 12] The plaintiffs have not raised as an issue whether the Board exceeded its authority by approving the modification of the Avelino Way subdivision without requiring the consent of the owners and mortgagees of affected lots, as required by G. L. c. 41, §81W. The plaintiffs, not being owners of any lots in the subdivision affected by the modification, would have no standing to raise this issue. Patelle v. Planning Bd, of Woburn, 20 Mass. App. Ct. 279 , 282-283 (1985). The only owners of lots affected by the modification, Swist and the Youngs, benefitted from the modification, and are deemed to have consented by their participation in this action in which they have actively sought to defend the granting of the modification.

[Note 15] The failure to require the reservation or grant of an easement in connection with requiring the spur to be shown on the plan, so that the Board could assure that it would someday be constructed, was perhaps a result of the Boards own negligence, but in any event, neither the Sioks predecessor in title, Watson, nor anyone else appealed this failure when the 2007 Plan was approved.

[Note 16] Mr. Siok, an experienced developer (Transcript, p. 68), testified that he had no intention of purchasing an easement or other property interest in the Avelino Way subdivision: I never planned on purchasing any property from Avelino Way, no. (Transcript, p. 78)

[Note 20] The Watson property is in an Agricultural zoning district, requiring 140 feet of frontage and 40,000 square feet of area for a buildable lot. It is reasonable to assume that the Watson property, with appropriate access, would yield at least several, and perhaps as many as seven or eight building lots after construction of an extended roadway and cul de sac into the parcel. With even a yield of just four lots, the per-lot acquisition price of less than $10,000 would be well below any conceivable fair market value for a buildable lot.

[Note 21] At the pretrial conference of this matter, counsel for the Sioks acknowledged that the two properties did not derive from a common grantor.